STATE v. DANIEL W. E., SC 19341

Judicial District of Windham


     Criminal; Sexual Assault; Evidence; Whether Constancy of Accusation Doctrine Should be Abandoned in Child Sexual Abuse Cases; Whether Jury Instructions Provided Adequate Guidance on Use of Constancy of Accusation Testimony.  The defendant was convicted of sexually assaulting his daughter while she was between six and nine years old.  The victim did not immediately report the assaults after they occurred, and she was sixteen years old at the time of trial.  At trial, the state presented constancy of accusation evidence through two witnesses who testified that the victim told them that her father had sexually assaulted her.  Under the constancy of accusation doctrine, a person to whom a sexual assault victim has reported the assault may testify that the allegation was made and when it was made, provided the victim has testified as to the assault, but the testimony is admissible only to corroborate the victim’s testimony and not for substantive purposes.  The central purpose of the constancy of accusation doctrine is to counter a jury’s potential inclination to draw a negative inference from a victim’s failure to report a sexual assault.  In State v. Troupe, 237 Conn. 284 (1996), the Supreme Court modified the doctrine but refused to discard it completely, reasoning that it was still needed to protect against the “unwarranted, but nonetheless persistent, view that a sexual assault victim who does not report the crime cannot be trusted to testify truthfully about the incident.”  With this appeal, the defendant again urges the Supreme Court to modify or abandon the constancy of accusation doctrine, particularly in child sexual abuse cases.  He claims that the doctrine grew out of perceived skepticism about sexual assault claims made by women, not by children, and that, in the current climate of awareness of child sexual abuse, no jury would doubt the credibility of a child who failed to report a sexual assault soon after it occurred.  He argues that the admission of constancy of accusation evidence is therefore unnecessary and overly prejudicial to an accused.  In the event the doctrine is retained, the defendant asks that it be restricted such that only the first person to whom the victim reports the sexual assault may testify.  The defendant also claims that the trial court’s jury instructions did not explain adequately that the constancy of accusation testimony was admitted only for the purpose of proving that the victim’s complaint was made, and not that the complaint was true.  He maintains that the instructions were inadequate because they (1) failed to account for the likelihood that jurors would fail to appreciate the subtle distinction between constancy evidence and substantive proof, (2) used dense legal language, and (3) failed to define the term “corroborate.”